https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9905

Ogony v Republic (Criminal Appeal E114 of 2025) [2026] KEHC 9905 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KEHC 9905 (KLR) Republic of Kenya In the High Court at Kisumu Criminal Appeal E114 of 2025 LM Wachira, J July 3, 2026 Between Kevin Otieno Ogony Appellant and Republic Respondent (Being an appeal from the original conviction and sentence of Hon. M. Ochieng (SPM) in Maseno criminal case No. E4397 of 2022) Judgment Introduction 1.This appeal arises from Maseno Criminal Case No. E4397 of 2022 where the Appellant herein Kevin Otieno Ogony was charged with three counts. The first count is for the offence of Robbery with violence contrary to Section 296 (2) of the Penal Code. The particulars were that on 23rd September, 2022 at around 1pm, at Chuth Ber Village, Kanyaweg Sublocation, Kisumu west Subcounty within Kisumu County, the Appellant while armed with an offensive weapon namely a claw bar, robbed No. 72630, PC James Kwalia his assigned AK 47 riffle serial number 4915192, loaded with 30 rounds of 7.2MM special Ammunition and before the time of the robbery used physical violence against the said No. 72630, PC James Kwalia. 2.The first Count had an alternative of handling stolen goods contrary to section 322(2) of the Penal Code. The particulars were that on 11th October 2022, at around 1700hrs at Kombedu, Kanyamedha Sublocation, Kisumu west Subcounty within Kisumu County, the Appellant together with others not before court were found in possession of a specified firearm namely AK 47 riffle serial number 4915192, loaded with 30 special live ammunitions of 7.2MM having reasons to believe it to be stolen property. 3.The second count is Being in possession of a firearm without a firearm certificate contrary to Section 4A(1)(a) of the Firearms Act. The particulars were that on 11th October 2022, at around 1700hrs at Kombedu, Kanyamedha Sublocation, Kisumu west Subcounty within Kisumu County, the Appellant together with others not before court were found in possession of a specified firearm namely AK 47 riffle serial number 4915192, without a firearm certificate. 4.The Third count is being in possession of ammunitions without a firearm certificate contrary to Section 4A(2)(a) as read with 4(3)(a)of the Firearms Act. The particulars were that on 11th October 2022, at around 1700hrs at Kombedu, Kanyamedha Sublocation, Kisumu west Subcounty within Kisumu County, the Appellant together with others not before court were found in possession of 30 live special ammunitions of 7.2MM without a firearm certificate. 5.The Appellant pleaded not guilty in all the counts and the prosecution called 11 witnesses to support its case. The Appellant was placed on defense and he gave sworn evidence and called two witnesses. Trial Court Evidence 6.The Prosecution called 11 witnesses. A summary of their case is that No. 72630, PC James Kwalia was on 23rd September, 2022 assigned an AK 47 riffle serial number 4915192, loaded with 30 rounds of 7.2MM special Ammunition by PW4 who was the officer in charge of the armory at Maseno police station. The officer proceeded to traffic duties along Kisian Bondo Road, in company of his colleague, PC Cheruiyot (PW3). Their testimony is that at about 1:00pm, PW2 was attacked by an unknown assailant using a claw bar. He was talking to a motorist when he was knocked on his head from the back and he fell down bleeding and unconscious. The assailant took the firearm that the officer had and took off with it. 7.PW3 who was at the scene, with the help of PW5 and PW6 attempted to run after the assailant but he completely took off. They therefore assisted and took the officer for treatment at Chulaimbo Hospital. The officer was treated and P3 form filled indicating a deep cut wound at the back of the head. The treatment notes, P3 and attendance card were produced in court. 8.The incident was reported to police and recorded in the OB. Witness statements were recorded by the investigating officer, PW11. Later on, PW8 and PW9 told court that they were interviewing a suspect who was held over a different crime. That the suspect informed them that his accomplices were also planning a robbery in Oyugis and they were armed with AK 47 riffles, and he offered to help them lay a trap. That this other suspect together with PW8 and PW9 proceeded to Kombedu on the 11th October, 2022 at around 5:00pm to where the suspect had agreed to meet with the other accomplices. That at that time, about 3 men were arriving and the suspect confirmed to the officers that these were the accomplices. 9.The witnesses told court that when the three men were about 30 meters from them, they pounced on them and to their surprise, the men fought back and started shooting as they ran away. The Appellant herein is said to have been carrying a bag, which he dropped as he took off. The three men all managed to run away with gunshot wounds. The bag that was dropped by the Appellant was recovered and inside it was an AK 47 riffle serial number 4915192, loaded with 30 rounds of 7.2MM special Ammunition. The officers realized that this was the same firearm that had been stolen from PW2 on the 23rd September, 2023. 10.The following day, 12th October, 2022, the officers told court that they were informed by their colleagues from Obunga police station that a certain person was being treated at St Jairus Hospital for gunshot wounds. The Officer from Maseno went to the hospital and found the accused person undergoing treatment at the said facility and they took over the matter. Once he was discharged, he was taken to Maseno police station and charged. 11.According to the arresting officers (PW8 and PW9) they had seen the accused person the day before at Kombedu and could identify him. They therefore identified him as the person they had seen the day before and who had been carrying a bag in which the AK 47 riffle serial number 4915192, loaded with 30 rounds of 7.2MM special Ammunition had been found. 12.Both the firearm and the ammunition were taken to the ballistic examiner and they were confirmed to be a functional firearm capable of discharging, despite having been shortened to fit into bags and the ammunitions were confirmed to be live ammunitions. The ballistic reports were produced in court as exhibits as well as the analyst’s report on the examination of the bloodstained clothes that PW2 was wearing at the time of attack. 13.The Appellant at defense denied the offence. He states that he sustained gunshot wounds when he was shot by officers while at Bandani stage waiting to pick public transport. He tells court that the officers were in a bush and just shot in the air before he was shot on the thigh. He claims that he went to his place of work and the officers who are stationed at his place of work started questioning him and then other officers arrived and took him to Obunga police station. That when it was dark, the officers took him out and went and dumped him in a sugarcane plantation. That the following day, he was assisted by good Samaritans who took him to St. Jairus hospital and was treated. As he was being treated, officers arrived and arrested him and he was later charged. 14.After the hearing, the trial court convicted the Appellant on the three counts and sentenced him to suffer death as is prescribed by the law for the first count of Robbery with violence. The sentences in Count 2 and 3 were held in abeyance. 15.The Appellant being dissatisfied by the trial court’s decision has now appealed against both the conviction and sentence on the following grounds:-a.That the trial court erred in law and in fact in failing to establish that the prosecution did not prove the offences beyond reasonable doubt.b.That the trial court erred in law and in fact in relying on fanciful and remote possibilities to convict the Appellant.c.That the trial court erred in law and in fact in not weighing the conflicting evidence in the prosecution case that was consequential in the conviction.d.The trial magistrate erred in law and in fact in not appreciating the Appellant’s cogent defence that overwhelmed the prosecution case. 16.The Appellant prayed that the appeal be allowed, the conviction quashed and the sentence set aside and he be set free. The appeal was heard by way of written submissions. Both parties filed their submissions. Submission by Appellant 17.In his submissions the Appellant states that his rights were violated. He states that he was arrested on 12/10/2022 and only arraigned in court on 27/10/2022. He urged the court to set him free on this reason. 18.He further submitted that he was not properly identified as the person who committed the Robbery. According to him, the victim did not see him and PW3 did not say that he saw him at the scene. He tied this with the failure to call crucial witnesses and states that the driver of the lorry who PW2 was talking to should have been called as a witness. His submission is that the court erred in relying on insufficient and contradictory evidence to convict him. 19.The Appellant also submits that the circumstances of his arrest are not clear and stated that the doctor at St. Jairus hospital should have been called as a witness. 20.On the sentence, the Appellant submitted that it was excessive considering that he was not linked to the commission of the offence of Robbery with violence. He urged the court to find that the prosecution had not adduced enough evidence and asked the court to set him free. Submissions by Respondent 21.The Respondent submitted on the punishment for the offence of robbery with violence stating that the prescribed sentence is death. They submitted that the trial court was within the law to mete out the death sentence, the offence having been proved. 22.Counsel submitted that the ingredients of the offence of Robbery with Violence were aptly discussed by Cockar, C.J., Akiwumi & Shah, JJ.A. in the case of Johana Ndungu vs. Republic CRA. 116/1995,[1996] eKLR where the Court of Appeal in Mombasa stated as follows: -“In order to appreciate properly as to what acts, constitute an offence under Section 296 (2) of the Penal Code, one must consider the subsection in conjunction with Section 295 of the PC. The essential ingredient of robbery under Section 295 is use of or threat to use actual violence against any person or property at or immediately therebefore or after. Thereafter, the existence of the afore-described ingredients constituting robbery are presupposed in the three sets of circumstances prescribed in Section 296 (2) which we give below and any one of which if proved, will constitute the offence under the subsection.” 23.Counsel submitted that the court proceeded to list the ingredients as below: -a.If the offender is armed with any dangerous or offensive weapon or instrument; orb.If he is in company with one or more other person or persons; orc.If at or immediately before, or immediately after the time of the robbery, he wounds, beats, strikes or uses any other violence to any person.” 24.He stated that in the Court of Appeal case of Dima Denge & Others vs. Republic (2013) eKLR, the learned Bench stated as follows:-“the elements of the offence under Section 296 (2) are three in number and they are to be read not conjunctively but disjunctively. One element is sufficient to found an offence of robbery with violence. 25.The Respondent submitted that the ingredients of the Offence of Robbery with violence were proved beyond reasonable doubt as follows, as demonstrated by the prosecution evidence that the assailant was armed with a claw bar, which was produced in court and that he wounded the victim, as testified by PW7 who produced the P3 form in court. 26.The Respondent submitted that the assailant had been identified and connected to the commission because of the firearm that was recovered on the 11th October, 2022. Counsel argued that the Appellant did not explain how he came to be in possession of the firearm and submitted that the court correctly applied the doctrine of recent possession. 27.On the contradictions, counsel submitted that there were none. He submitted that the evidence that was tendered by the Prosecution witnesses during the trial was reliable, cogent and well corroborated. Analysis and Determination 28.The role of this Court as the first Appellate Court is well settled.It was held in the case of Okemo vs. R (1977) EALR 32 and further in the Court of Appeal case of Mark Oiruri Mose vs. R (2013) eKLR that this Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyse it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence and give allowance for that. 29.I have considered the entire evidence on record, the record of Appeal herein, the grounds of the appeal and the Submissions by the parties and I will frame the following issues:-a.Whether the Appellant was properly linked to the commission of the offence committed on the 23rd September 2022.b.Whether the trial court erred in not finding that the prosecution had failed to call crucial witness and erred in convicting the Appellant on contradictory evidence.c.Whether the Constitutional Rights of the Appellant were breachedd.Whether the sentence was excessive in the circumstances. Whether the Appellant was properly linked to the commission of the offence committed on the 23rd September 2022. 30.On this ground, the prosecution evidence is that the Appellant was found in possession of the firearm that was stolen from PW2 on the 23rd September, 2022. The evidence of the Appellant having committed the Robbery is circumstantial in that because he was found with the firearm, still loaded with the 30 rounds of special ammunition, then he must have been the person who had attacked the complainant and stolen the firearm. 31.The prosecution therefore needed to prove that indeed the Appellant herein was found in possession of the firearm, so that the burden of proof would then shift to the Appellant to explain how he came to be in possession of the firearm if indeed he is not the one who attacked the Complainant and stole from him. 32.The prosecution evidence is that PW8 and PW9 saw the Appellant on the 11/10/2022 when they had laid a trap and the Appellant arrived with 2 others to meet their accomplice at Kombedu and on 12/10/2022 at St. Jairus hospital where he went to be treated for gunshot wounds. The two witnesses were categorical that it is the Appellant they saw and it is the Appellant who had the bag that contained the firearm and the ammunition. 33.On the 11/10/2022, the ambush had been laid at about 5:30pm, therefore there was sufficient day light to be able to see a person and identify them. The witnesses told court that the Appellant was about 30 metres from them when they pounced on them. A distance of 30 meters is very short and one would be able to see a person who is about 30 meters away and identify them. There is no evidence that the Appellant had concealed his face or in anyway disguised his appearance. 34.My finding is that the circumstances of identification were favourable and the trial court did not err in finding that the Appellant had been properly identified. 35.And therefore, the Appellant having been identified and there being evidence that he had a bag in which the firearm was found, the burden of proof was bound to shift to him to explain how he had acquired the firearm loaded with live ammunition. This is the doctrine of Recent possession. In the case of Patrick Oduor Ochieng V Republic [2022] KECA 23 (KLR) the Court of Appeal quoted the case of Athuman Salim Athuman vs. Republic 2016 eKLR, where it was held that: "The essence of the doctrine is the reasonable explanation how he came to be in possession of that property, a presumption of fact arises that he is either the thief or receiver.(See Malingi v Republic (1989) KLR 225 H.C and Hassan v Republic (2005) 2 KLR 151).” 36.The Court of Appeal equally applied the doctrine in Isaac Ng'ang'a Kahiga alias Peter Ng'ang'a Kahiga & Anor v Republic (2006) eKLR, where this court stated; - it is trite that before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof that:-a.That the property was found with the suspect,b.That the property is positively the property of the complainant;c.That the property was stolen from the complainant and lastly,d.That the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one to the other." 37.Evidence on record was that the firearm was found with the Appellant, the firearm was positively identified through its serial number 4915192, the firearm movement register was produced in court indicating that the firearm had been assigned to the complainant on the 23rd September, 2022 when it was stolen and it was recovered 18 days from the date of loss. Considering how difficult it is for a firearm without a certificate to move from one person to another, 18 days are such a short time. 38.In those circumstances, the doctrine of Recent possession was applicable and it was upon the Appellant to offer a plausible explanation as to how he got into possession of the firearm. The Appellant did not give any plausible reason as to how he came in possession of the said riffle and the ammunitions, and therefore a presumption that he was the thief. 39.My finding is that the trial court did not err in finding that the prosecution had proved the three Counts against the Appellant beyond reasonable doubts. Whether the trial court erred in not finding that the prosecution had failed to call crucial witnesses and erred on convicting the Appellant on contradictory evidence 40.The Appellant claimed that the driver who the Complainant was speaking to during the incident and the doctor from St Jairus Hospital were not called as witnesses and the prosecution evidence was contradictory. 41.I have perused the prosecution evidence and I find no contradictions. On the failure to call the two witnesses, I take cognisance of the fact that the complainant was on traffic duties on a public road. The driver he was speaking to was a motorist on the road on that particular day. I do not know where this witness would have been traced from. And in any event, assuming the witness was traced and came to court, he would only have testified on the injury and robbery to the complainant. He was not present when the Appellant was found in possession of the firearm. 42.For the doctor from Saint Jairus, the Appellant himself told court that he went to hospital to be treated for gunshot wounds after he was shot at the Bandani stage. He did not dispute that the went to the said hospital, which was also confirmed by PW8. My finding is that the evidence by the doctor would not have added any value to the prosecution case. Whether the Constitutional Rights of the Appellant were breached. 43.The Appellant submits that his rights were breached because he was arrested on the 12/10/2022 and only arraigned in court on 27/10/2022. I have considered this submission and my view is that the Appeal herein relates to the offences that are listed on the charge sheet and the attendant judgment by the trial court. 44.If the Appellant strongly feels that his rights were breached, there are remedies in the Constitution of Kenya and he is free to pursue the same separately. For this court, it will strictly restrict itself to the Appeal on the charges that were tried by the trial court.Whether the sentence meted by the trial Magistrate is excessively high. 45.The Appellant was brought to court under the provisions of Section 296 of the Penal Code. The section provides as follows:“296(1) Any person who commits the felony of robbery is liable to imprisonment for fourteen years.And 296(2) If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death." 46.As I have found hereinabove, the trial court did not err in convicting the Appellant for the offence of Robbery with Violence. The sentence provided for the offence under Section 296(2) is death penalty. The court noted the mitigation of the appellant, and called for a presentence report and considered the same and went ahead to mete out the sentence. 47.I have also considered the Sentencing Ruling delivered by the trial magistrate on the 15/09/2025. In the Court of Appeal case of Bernard Kimani Gacheru vs. Republic [2002] eKLR it was stated as follows: -“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, the sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with the sentence unless that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless any one of the matters already stated is shown to exist.” 48.In the circumstances, this court finds that the Sentence meted out by the trial Magistrate was as provided by the law and the court will not interfere with the sentencing discretion of the trial court. 49.In the upshot, I find that the appeal herein lacks merit and is dismissed. The conviction and sentence by the trial court are upheld. It is so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 3RD DAY OF JULY 2026.…………………………..………………L. M. WACHIRAJUDGEIn the presence of:Leadys – Court assistantAppellant – present in person (virtually from Kisumu Max.)Ms Jebichi - for the State/Respondent.